Littler Mendelson predicts big changes in labor laws

SAN FRANCISCO
January 19, 2009 7:38am

Businesses should expect several major shifts in labor and employment law issues created by the incoming presidential administration, says labor law firm Littler Mendelson’s San Francisco office.

Companies should be closely monitoring the potential legislative changes related to unions, immigration, health care, discrimination, pay, and executive compensation and benefits, and preparing for shifts in business practices these changes – if implemented - would require, the attorneys say.

An array of legislative initiatives is expected to gain traction in 2009, including the Employee Free Choice Act (EFCA), which has been a controversial proposal since its introduction to Congress in 2007, says Littler Mendelson.

If passed, EFCA would make “sweeping changes” to federal labor law and deeply affect the dynamic between employers, employees and unions, the law firm says.

Littler attorneys offer employers the following forecast related to the state of labor and employment laws in 2009 under the Obama administration:

• Employee Free Choice Act (EFCA) — The EFCA bill would allow unions to organize employees, including in business sectors historically free of unionization, without the need for a secret ballot election, creating an expected increase in the number of private companies with unionized workforces. The bill would also change mandates for collective bargaining and federal mediation and arbitration.

President-elect Obama has gone on record supporting EFCA, and businesses should anticipate that the bill – in its current form or with revisions – will make advances in Congress in 2009, says Littler Mendelson.

• RESPECT Act—Co-sponsored by President-elect Obama, the RESPECT Act narrows the NLRA’s definition of a “supervisor,” essentially increasing the number of employees eligible for union representation.

• Paycheck Fairness Act—If enacted, the bill, endorsed by President-Elect Obama, would significantly amend the Equal Pay Act of 1963, which addresses gender-based wage discrimination. The Paycheck Fairness Act would impact employers on multiple levels “including placing an increasing burden of proof related to unequal pay and prohibiting retaliation against co-workers who share salary information,” says Littler Mendelson.

This bill passed the House on Jan. 9 and is expected to pass the Senate in the next couple of weeks.

• Fair Pay Restoration Act—Introduced to address the 2007 Supreme Court decision (Ledbetter v. Goodyear Tire & Rubber) that ruled an employee who claims pay discrimination must file a complaint within 180 days of that discrimination taking place, the Pay Restoration Act—co-sponsored by President-Elect Obama and expected to draw quick action from Congress under his administration—would essentially make it easier for employees to sue for pay discrimination, giving them more time to file charges.

This bill also passed the House on Jan. 9 and is expected to pass the Senate in the next couple of weeks.

• Working Families Flexibility Act—In addition to the FMLA, this act, introduced in 2007 and supported by President-elect Obama, will be up for legislative consideration. The bill, if passed in its current form, would provide employees the right to request, once every 12 months, that their employers modify work hours, schedule or location. “Employer follow-up to these requests would be extensive and time-sensitive, creating additional burdens, particularly for small businesses with little or no human resources function,” says Littler Mendelson.

• Illegal Immigration Enforcement and Social Security Protection Act—If enacted, this bill would increase penalties for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure. This new procedure would create a revised identification verification system by which employers can more easily check on a potential hire’s employment eligibility.